The Right to Counsel At Selective Service Hearings
Introduction
The Selective Service System has been in continuous operation since 1948. Only in the last four years, however, have major changes been made in the System. In 1967, deferments for graduate students and certain occupational specialties were phased out. In 1969, after a long debate, the method of determining induction order was changed to a lottery system based upon dates of birth and a registrant’s prime vulnerability to the draft was cut from seven years to one year. In 1971, the Draft Extension Act, authorized the establishment of a national draft call, rather than one based on local board quotas, and the prospective abolition of undergraduate deferments. In addition, the Act required all regulations to be published thirty days in advance of their effective dates to enable the public to comment on the proposals, and gave statutory recognition to certain procedural rights which registrants may not be denied. These statutory rights included the right to a personal appearance before any local or appeal board, the right to present witnesses before the local board, the right to the presence of a quorum of any board during the registrant’s personal appearance, and the right to have, on request, a written explanation of any board action contrary to the request of the registrant.
These provisions represent the first time Congress has specified minimum procedural rights to which the registrants are entitled, and are aimed primarily at extending the existing personal appearance at the local level throughout the system and assuring that a majority of the board members actually attend the personal appearance. These new statutory provisions underscore congressional recognition of the importance of the personal appearance, the only official personal confrontation between registrant and board members. At this appearance, the registrant can answer questions from the board members concerning his application for deferred or exempt status, and can seek to impress the board with his sincerity. Many of these deferred classifications are within the discretion of the board and, therefore, the ability of the registrant to persuasively communicate his claim can be decisive.
However important these new protections are, conspicuous by its absence is another fundamental guarantee: the right to the presence of counsel at the personal appearance. The right to have counsel present at the personal appearance was included in the Senate version of the draft bill, but was deleted by the Senate-House Conference Committee before the bill was enacted in its final form.
The absence of a provision authorizing the presence of counsel in the final version of the law passed by Congress does not forbid counsel’s presence. Rather, it leaves the issue to the determination of the President, under his general authority to prescribe the necessary rules and regulations to carry out the provisions of the Selective Service Act. Through the use of this authority, President Nixon has authorized a regulation declaring: “No registrant may be represented before the local board [or Appeal or National Board] by anyone acting as attorney or legal counsel.”
This Note will consider whether a registrant may constitutionally be denied representation of counsel before the Selective Service. Such a denial may be challenged on three grounds. First, it is arguable that the regulation is invalid under Greene v. McElroy because it is not specifically authorized by Congress. Secondly, since the personal appearance may be considered a “critical stage” in any prosecution for refusing induction, it is possible that denial of counsel violates the sixth amendment. Third, the denial of due process may violate the fifth amendment guarantee of due process. This Note will evaluate the assertion that due process, applied to SelectiveService hearings, requires that the registrant by represented by counsel.
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